FMLA DOL FORMS EXPIRE- OK TO STILL USE? As many of you well know, the United States Department of Labor (DOL) has issued forms commonly used by employers to comply with the Family and Medical Leave Act (FMLA). Among other things, DOL’s forms assist employers in notifying employees about their FMLA eligibility and in obtaining medical certification needed for many FMLA leaves. These very helpful forms can be found at: http://www.dol.gov/whd/fmla/ However, if you look carefully at the forms, you will note that they include an expiration date of 1/31/12. Does this mean that they can no longer be used after that time? No. The forms will expire because federal law only allows the Office of Management and Budget (OMB) to approve forms for a maximum of three years. The FMLA forms were approved in 2008 and thus now have expired three years later. DOL is seeking OMB approval to renew them. The forms are still valid for employer use in administering FMLA leave and DOL likely will update them sometime in the future to include additional information, such as that noted in the next section.

ADD GINA SAFE HARBOR LANGUAGE TO FMLA FORMS: Speaking of the FMLA forms, they were developed before recent developments in the federal Genetic Information Nondiscrimination Act (“GINA”). GINA prohibits employers from discriminating based on genetic information and from gathering such information about an employee and/or his/her family member. Recent GINA regulations help provide employers with a potential “safe harbor” from liability under the law if certain disclosures are made to employees and their health care providers. I have seen numerous legal commentators recommend that employers add the GINA safe harbor language to their FMLA forms. Here (below) is the language I have seen recommended:

Employee's Serious Health Condition – The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Family Member’s Serious Health Condition – The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. Please provide medical history information regarding your patient only to the extent necessary to fully respond to all relevant items below.

Note: This language should be added to the FMLA medical certification form or other written documentation that accompanies the form, and should be used when a fitness for duty certification is requested.

UTAH LEGISLATURE TO AGAIN CONSIDER BANNING ORIENTATION BIAS: The Utah Legislature started its 2012 general session on Monday, January 23, 2012. The session runs through March 8, 2012. The Legislature is expected to again consider a bill to ban sexual orientation employment discrimination on a statewide level. Numerous local governments (cities and counties) already have enacted ordinances banning businesses from such discrimination. The Salt Lake Chamber has endorsed such a ban. Here are links to an article from the Salt Lake Tribune discussing the issue further: http://www.sltrib.com/sltrib/mobile/53343427-90/discrimination-anti-bill-gay.html.csp

FLSA COMPANIONSHIP EXEMPTION TO BE NARROWED? For many years, the DOL has recognized an exemption from the Fair Labor Standards Act (FLSA) for persons employed as domestic companions. The exemption excluded many home care and personal assistance workers, who provided companionship services for the sick and elderly at home, from FLSA’s overtime and minimum wage requirements. A detailed DOL discussion of the existing exemption can be found here: http://www.dol.gov/whd/regs/compliance/whdfs25.pdf DOL is proposing the change this exemption. Here is DOL’s own summary of its proposed changes: “The Department is proposing to revise the regulations to accomplish two important purposes. First, the Department seeks to more clearly define the tasks that may be performed by an exempt companion. Second, the proposed regulations would limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as health care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household.” A more detailed summary of the proposed DOL changes can be found here: http://www.dol.gov/whd/flsa/whdfs-NPRM-companionship.htm

RECENT VERDICTS AND SETTLEMENTS: Recent verdicts and settlements of employment law cases remind us that employment law is still a tricky compliance area for businesses. Some examples are below. A national soft drink company has agreed to pay over $3 million to resolve claims of race discrimination. The settlement result from a finding by the Equal Employment Opportunity Commission (EEOC) that more than 300 African Americans were adversely affected when the company applied a criminal background check policy that disproportionately excluded black applicants from permanent employment. Under the company’s disputed policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense. Moreover, a cleaning company has agreed to pay almost half a million dollars to settle race and retaliation claims. This case involved allegations that an employee was instructed not to hire any more cleaning employees of a certain race.

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.